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Keeping affordable contact lenses and patient rights in focus

(Easton Randall | R Street Institute) – While most of Congress and K Street is preoccupied with tax reform, keeping the government funded and deciding which holiday parties to attend, other issues in Congress are moving ahead under the radar. If the American people are not vigilant, Congress is going to get away with supporting some fairly anti-free market policies that will have real, negative effects on millions of people.

One example involves contact lenses and a 14-year fight with the optometrist lobby over Americans’ right to choose where they buy contact lenses. In late November, Chairwoman of the Financial Services and General Government Subcommittee, Sen. Shelley Moore Capito, R-W.V., introduced the committee’s appropriations bill, which gave an early Christmas present to all optometrists in America, courtesy of the American consumer. In the legislation, the subcommittee takes to task the Federal Trade Commission’s (FTC) proposed rule that would require optometrists to have patients sign a written acknowledgment indicating that they received their prescription and to keep and store a copy of the signed acknowledgment as proof.

To most people, the FTC rule would seem like a simple, commonsense approach to ensuring that patients are treated fairly. However, the optometrists’ lobby is up in arms, claiming that this regulation is unfair, burdensome and costly. Their complaints should fall on deaf ears.

The fight over contact lenses is not about patient well-being; it’s about control of the marketplace. For decades, optometrists had a virtual monopoly on contact lenses. In fact, prior to 2003, Americans could only buy contact lenses from the optometrist who wrote their prescription. That year, however, Congress passed the Fairness to Contact Lens Consumers Act (FCLCA), which requires optometrists to provide patients with a free copy of their prescription and to confirm the validity of that prescription to any contact lens provider from which the patient chooses to purchase.

Over the last decade, the FCLCA has completely changed the contact lens marketplace. The law has created more retail and online options for consumers, which has helped drive costs down. Lower costs, in turn, have helped give millions of people access to contact lenses. A study published by Contact Lens Spectrum shows that the number of adults purchasing lenses grew from 36 million in 2005 to 40.9 million in 2015.

No matter which way you look at it, this law has achieved its primary goal. Yet we are still fighting to protect it from special-interest sabotage.

While the 2003 law has opened the marketplace to millions and created a fair system for contact lens consumers, problems with its implementation still linger. According to a recent poll, 31 percent of respondents stated that optometrists did not give them their prescriptions, and 60 percent of those polled were unaware that they had a legal right to their prescriptions with no fees attached or purchase required. These issues indicate why the FTC rule is so important.

Congress set out in 2003 to make sure Americans had fair access to lower-priced contact lenses, yet plenty of problems still exist. The Byzantine maze of federal bureaucracy makes it nearly impossible for average Americans to file complaints when their rights are denied. By requiring patients to sign acknowledgments, the proposed FTC rule would ensure that all patients are informed of their legal rights. Furthermore, requiring optometrists to store these records will help weed out the remaining bad actors by shifting the burden of proof, in cases where complaints are filed, from the consumer to the provider.

While the optometrist lobby has complained that the acknowledgment forms will impose a massive new cost on their members, in reality, their criticism is tough to swallow. Medical professionals are already required to keep and store a large amount of patient information; adding a single additional page is hardly a major lift. More importantly, ensuring that all patients are treated fairly is worth the extra paperwork.

The battle for congressional support for the FTC rule is far from lost; in fact, there is even some reason for hope. While the Senate bill criticizes the new rule, its House of Representatives companion bill fully embraces what the FTC is trying to do. Financial Services and General Government Subcommittee Chairman Tom Graves, R-Ga., supported the FTC efforts to enforce the law and included language in his committee’s bill encouraging the FTC to continue work on the issue. Because of this and other differences, the two bills must go to conference so lawmakers can work out a single comprise bill.

There is no doubt the federal government has an over-regulation problem, and that many of its rules have harmed our economy and burdened the businesses forced to implement them. However, this rule is the exception. The FTC is trying to protect Americans’ rights and the free market – all in one simple rule. Congress should be supporting the efforts of the FTC, not criticizing the agency for making sure the law is properly implemented.

Congress passed the FCLCA to give Americans the right to buy contact lenses wherever they see fit, and the new FTC rule is simply helping ensure those protections come to fruition. As House and Senate members gather to conference over this issue, we should all hope they come away in support of protecting the American people instead of falling prey to powerful special interests.

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